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Mixed-up Hazards October 29, 2008

Posted by nitinkarani in Section 377, Times of India.
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TOI LEADER ARTICLE: Mixed-up Hazards

29 Oct 2008, 0000 hrs IST, Bachi Karkaria

Motivated morality is among the oldest health hazards known to man. The moral police have always subpoenaed public health to propagate their
self-righteous causes. The ‘stigma’ they spread as a result is the biggest impediment to the solution. The latest example is the surreal drama unfolding in the Delhi high court in the case of Naz Foundation vs Govt of NCT of Delhi.

The petitioners have sought to ‘read down’ Section 377 of the IPC so that consenting adults are exempt from its draconian provisions, while minors and the non-consenting remain within its vital protection.

The health minister has wisely sought a similar amendment to Section 377, on the impeccable argument that decriminalising homosexuality will help staunch AIDS. The stigma drives homosexuality underground, and denies access to preventives, care and treatment.

Of course, gay rights go way beyond HIV-AIDS, but, as indisputably, the pandemic has further vitiated public opinion against this vibrant community. To the age-old intolerance of any deviation from the norm has been added a fearful disease, making the homosexual doubly reviled, and bestowing an extra late-20th-century sting on Section 377’s Victorian lash.

This 1860 statute was drafted by Lord Macaulay, whom we must otherwise thank for the education of us natives. We keep emphasising that new laws alone don’t change social attitudes, but no one can deny that existing ones legitimise prejudice.

Unfortunately the home and law ministries want to retain Section 377 in its entirety, continuing to see homosexuality through the keyhole of criminal immorality. The health ministry has a completely different vantage point, and looks at the homosexual through the prism of HIV-AIDS, not as its dangerous vector, but as an essential part of its solution. According to NACO, the GLBT (gay, lesbian, bisexual & transsexual) community numbers 25 lakh, and anyone whose head is not habitually in the sand knows it is a gross underestimate.

They have as much right as the vulnerable heterosexual to the messages and means of safe sex within their own genetically ordained orientation.

During the hearing which began on September 26, Chief Justice A P Shah and Justice S Muralidhar of the Delhi high court have constantly pulled up the additional solicitor general of India for the irrelevance of the cases he has cited and the sheer absurdity of his remarks, but none of this has diluted the moral apoplexy with which P P Malhotra continues to damn homosexuality.

While firmly supporting the rationalisation of Section 377, this piece is not, per se, about gay rights. It is about our irrational and dangerous habit of mixing together the two very different issues of health and morality, and often co-opting law & order as well. Listen to the ASG’s choice of words on the very first day of the case’s hearing: “It (decriminalising homosexuality) may create breach of peace. If it is allowed, then the evils of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society.” He made these sweepingly unrelated connections with such pulpit-thumping fervour that one expected a fiery ball of divine wrath to descend on the courtroom and consume these satanic forces.

We don’t have to remind the ASG that, unlike in the US where this inexplicably frightening scourge was first labelled ‘the gay disease’, Indian HIV-AIDS has been predominantly a heterosexual issue right from its surfacing in the mid-1980s. But it has to be emphasised that it has become a doubly ‘dreaded disease’ because we simply cannot resist the temptation to make a moral example of anything we can clamp our primly pursed lips upon.

The virus spread unchecked because we initially pretended that it was a problem of the ‘decadent West which could never exist in upright, monogamous India’. If, even now, we get off our sanctimonious high horse, and regard it as what it intrinsically is, a health issue, the battle against it can be carried out more effectively.

Unfortunately anything involving the sexual act can never remain immune to the meddling onslaught of the moral brigade. This in itself is fundamentally irrational on two counts. One, sex is basic to both pleasure and procreation not just in humans, but across the animal kingdom. Two, one would imagine that the souped-up moralist would steer clear of anything so ‘tainting’ instead of deliberately getting entangled in its contagious embrace.

Long before HIV and homosexuality, the sex worker was the victim of this dangerous subpoenaing of health to pump up the morality ego. But now Indian brothels, like those the world over, have realised that they can most effectively tackle the occupational hazard of AIDS when they let in the doctor and keep out the self-appointed emissaries of salvation.

Sexuality, AIDS and morality constitute our Bermuda triangle, a treacherous patch for the ship of state. The only hope is to keep morality and health issues in their own watertight compartments. There are enough legitimate crimes for the home ministry to concern itself with, and almost immoral for it to squander its energies on tilting at obsolete windmills. If the health ministry could be allowed to get on with its job, we might see a larger social healing.


HIV-homosexuality ‘link’: HC asks where’s the proof October 2, 2008

Posted by nitinkarani in English, Indian Express, Section 377.
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From The Indian Express:

HIV-homosexuality ‘link’: HC asks where’s the proof

Express news service
Posted: Oct 01, 2008 at 0057 hrs IST
New Delhi, September 30 The Delhi High Court on Tuesday told the Centre to submit specific proof to substantiate its claim that the practice of homosexuality spreads the HIV virus.“Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV,” a Division Bench of Chief Justice A P Shah and Justice S Muralidhar told the Centre.

“If your argument is correct, then spread of HIV should have stopped in the country as the law has been in place for the past many years. But it is not the case as many people are still dying from the virus,” the court said.

The High Court bench also pointed to the contradictions between the affidavit filed by the Home Ministry — on which the Centre is currently basing its arguments — and the Health Ministry, which notes that Section 377 encourages marginalisation of the gay community.

“It is a strange situation. Your first affidavit (Home Ministry’s) is silent. There is not a single word on what you are saying, while other affidavit (Health Ministry’s) is pointing out that the penal provision leads to marginalisation of HIV patients,” the court asked.“How would the court decide the matter. Has there been any empirical study done by the Government to substantiate its stand?” the court said.

The judges also called for a special law to provide proper care and treatment to HIV patients, like other countries.

Putting forward the Centre’s view, Additional Solicitor General P P Malhotra said gay sex was a threat to the society and cannot be decriminalised. “Right to health of a few persons cannot supersede the right to health of society. There has to be a balance between them and it is for this purpose that Section 377 is there,” the ASG submitted.

Curbing homosexuality not a solution for HIV: HC October 2, 2008

Posted by nitinkarani in English, Indian Express, Section 377.
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From The Indian Express:


Posted: Sep 30, 2008 at 1809 hrs IST

New Delhi, September 30: The Delhi High Court said that problem of HIV cannot be solved by curbing gay sex and pulled up the Centre for seeking the retention of penal provisions against homosexuality on this ground.”Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV,” a bench comprising Chief Justice A P Shah and Justice S Muralidhar observed when the Government contended that homosexuality spreads the disease.

“If your argument is correct then spread of HIV should have stopped in the country as the law has been there for many years. But it is not the case as many people are dying of the dreaded disease, the court said.

The court objected to the contention of Additional Solicitor General P P Malhotra that the Home Ministry’s affidavit, on which the government is relying, does not say any thing on this aspect.

“It’s a strange situation. Your first affidavit (Home Ministry’s) is silent. There is not a single word on what you are saying while other affidavit (Health Ministry’s) is pointing out that the penal provision leads to marginalisation of HIV patients,” the court said.”How would the court decide the matter. Has there been any empirical study done by the government to substantiate its stand,” the court said.

It said that a special law should be made to provide proper care and treatment to HIV patients like other countries.

“Unlike other countries we have not brought any special laws for people suffering from the disease on the pretext that penal provision under Indian Penal Code is sufficient,” it said.

Putting forward the Centre’s view, the Additional Solicitor General said that gay sex is a threat to society and it could not be decriminalised.

“Right to health of few persons cannot supersede Right to health of society. There has to be balance between them and it is for this purpose that Section 377 is there,” Malhotra said.

The court was hearing a PIL filed by gay rights activists seeking courts direction to amend Section 377 of Indian Penal Code by decriminalising gay sex among consenting adults in private.

The IPC at present holds an homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts.

Earlier, gay rights activists had contended that the government, by decriminalising [sic] homosexual acts, is infringing upon their fundamental right to equality by decriminalising [sic] homosexual acts on the ground of morality.

“The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are being violated,” they had contended on Thursday

The IPC at present holds homosexual act as an offence and the Section provides a punishment of up to life imprisonment for indulging in such acts.

“Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex,” the activists had said adding that gays in the country don’t have full “moral” citizenship and they are being treated as second class citizens….

A Love Created by a Lesser God: India’s Laws Punish Homosexuals as Criminals October 2, 2008

Posted by nitinkarani in English, Online/New Media, Section 377.
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The Women’s International Perspective

September 30, 2008

A Love Created by a Lesser God:
India’s Laws Punish Homosexuals as Criminals

Parul Sharma
by Parul Sharma
– Sweden –
As it is, love can either be a blessing or a poison, depending on various aspects. But when love is felt for someone of the same sex, in some cultures, that love becomes a living hell – or simply a love created by a lesser God. Yes, a lesser God – not as strong and creative as the God we are used to. This lesser God created love but forgot to do the ample marketing needed to share the selling points of this particular love, such as poetry, music and literature. 

Love knows no boundaries, but maybe our minds do. Otherwise why would I have asked my friend, Are you sure this is love and not just a greater friendship?

• Though homosexuality is accepted in many societies, Indian culture and law treats them as criminals. Photograph byMushi. •

A few weeks ago someone close to me fell in love. This girl, my friend, fell in love with another woman. She refuses to be called a homosexual – after having relationships with men she fell in love with another woman for the first time in her life. She says she is not bisexual, just in love. But it is a complicated love, a complicated way of loving, and I am not referring to whether this love of hers is reciprocal or not. No, it is complicated because even I got stuck.I am a human rights lawyer who believes that people should stand up for their rights, will, dreams and wishes in all situations. Now when a person close to me became a “victim” of this lesser love, I could not initially find words to advise her. But it got me thinking again about the trauma people around the world suffer from. In some cultures, women and men are forced into heterosexual marriages to cure what their friends and families call “psychological issues,” but which is actually a matter of a love created by a lesser God. My confusion? This dilemma took place in Sweden – a liberal, modern and educated country. It makes me wonder, if this confusion is so great amongst people living on “this side of the world,” what is the situation in countries where such love is actually a crime?

Social stigma and legality in India are forcing millions of people to suppress their natural emotions, wishes and dreams; socially constructed systems and perceptions that deem what is “normal and natural” are being imposed on society. Consider this: Indian law allows sentences from 10 years to life imprisonment for people caught indulging in the kinds of sexual relations that it identifies as being “against the order of nature” – the result of a 150 year old law. William Shakespeare’s famous quote – “They do not love that do not show their love” – is another miscalculation of this love created by a lesser God, because how is one to show and express the joys of love if the love one feels is not considered a natural emotion?

Homosexuals have been detained in clinics in countries like India and subjected to treatment against their will. The NAZ Foundation India Trust, an NGO, filed a petition with the National Human Rights Commission of India (NHRC) regarding a case in which a man was forcefully subjected to shock therapy. The NHRC declined to take the case, as gay and lesbian rights were not under its purview. The Naz Foundation has challenged the constitutionality of Section 377 of the Indian Penal Code in the Delhi High Court. The section describes homosexual intercourse as “unnatural sex.” The government dithered for two years before it filed its response and only did so after immense pressure from civil society groups and several judicial strictures. While its stalling is understandable as a tactic to eliminate another problematic litigation in the half-a-million or so cases clogging the Indian judiciary, the substance of its reply brings to light the country’s cultural straitjacket.

The government reply states: 

“In fact, the purpose of this Section 377 ipc is to provide a healthy environment in the society by criminalising unnatural sexual activities against the order of nature… If this provision is taken out of the statute book, a public display of such affection would, at the most, attract charges of indecent exposure which carry a lesser jail sentence than the existing imprisonment for life or imprisonment of 10 years and fine. While the government cannot police morality, in a civil society, criminal law has to express and reflect public morality and concerns about harm to the society at large. If this is not observed, whatever little respect of law is left would disappear, as law would have lost its legitimacy.”


The government maintains that if “unnatural sex” is not prohibited, the normal social order would break down. To the government, issues relating to sexual minorities are not Indian, but something which only happens in the West.

To me, the right to life and livelihood is the most inherent right a person is born with. Whenever society forces a human being to comply with something that is actually killing a natural desire – the desire to share, love and be in love – the right to life and livelihood is immediately violated. In terms of civil laws, the entire scope of benefits, which flow out of the institution of marriage, are heterosexually ordered. There is no space whatsoever in an Indian family to express a non-heterosexual alternative. In traditional India, where marriage is life’s most important event and no family is complete without children and grandchildren, homosexuality is rarely acknowledged, let alone accepted.

Marriage under all personal laws and the Special Marriage Act in India are defined as an arrangement between two members of the opposite sex. This has caused particular violence to lesbian women in India who have forcefully articulated their desire to have their relationship validated by marriage. There have been ten documented cases of lesbian marriages since 1988, all of which were challenged.

The police, under the Criminal Procedure Code, have the power to arrest on suspicion that a crime is going to be committed. It is this unsighted power which is used to harass and violate the homosexual population who frequent public parks. There are documented cases of police abuse, including illegal detention, extortion, abuse and intimidation of the homosexual population. It discourages reporting of male rape, and thus encourages such rape, often by police. In sum, it disrupts the social existence of all “same sex persons,” erodes their dignity and self-respect, and reduces them to a sub-human level of existence. The silence and shame around the issue of homosexuality is so great and the fear of being isolated and discriminated so prevalent that a lot of those who are caught by the police prefer to pay a fine rather than fight for their human rights. Almost none of the cases go to court with the person being let go after he has paid off the police officer. Human rights abuses are thereby legitimized by law.

A law this unrealistic creates a stigmatized identity of the “homosexual as criminal.” Instead of breaking down discriminating social structures, the media encourages this antiquated value system by legitimizing the legal notion of “unnatural offense” and propagating such notions of homosexuals as “psychopaths, retarded and dangerous.” I have always wished that in Bollywood’s efforts to ape Hollywood, the film industry would figure out that it has the power to convey and correct misconstrued notions on difficult issues like homosexuality. But the film industry is just as disconnected from reality as the politicians of this nation. Hindi cinema through its launch of the homophobic film Girlfriend in 2004 – a violent modern depiction of lesbian love – has shown that even otherwise liberal Bollywood is not ready to discuss homosexuality. And with an education system where sex education is still taboo, it is unrealistic to even talk about introducing the concept of homosexuality as something normal.

Given all the stigma, the discrimination, the hatred, the government’s ignorance, the unrealistic laws and an old fashioned education system, how do we make this love created by a lesser God less complicated to people – people like myself, who constantly claim that it’s just love, a deep affection for another human being, and that’s all. Still, when this love appears on my doorstep, even I get confused. Where love should be effortless, it instead becomes a curse, all because of the boundaries of the mind. I wish that every person in love could follow Shakespeare’s words and even if the love is not mutual, one could rejoice in the sweet memories that love brings – like when I pass a particular kebab-place here in Stockholm, my whole heart rejoices. Well, that’s another story for another day.

In the name of love,
Parul Sharma

About the Author
Parul Sharma is a human rights lawyer and activist based in Stockholm, Sweden. Parul has written several articles on the rights of children and women and victims of crime. Parul is the author of the book Right to Life; the pluralism of human existence, released by India Research Press in April 2007. For the last few years, Parul has been working on issues related to corporate social responsibility with Swedish companies investing in emerging markets.

Visit her website A Seachange to learn about her initiative to inspire change “based on voluntarism and the power of each individual to make a difference.”


Home bias + Gay pride October 2, 2008

Posted by nitinkarani in English, Indian Express, Section 377.
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Indian Express editorial

Home bias

Oct 02, 2008

In reports emerging of the reactions of the judges of the Delhi High
Court who are hearing the government’s arguments against the
legalisation of homosexuality, the outrage and confusion that they
clearly feel at the illiberal and contradictory stand that the
additional solicitor-general has taken on behalf of the Government
come through quite clearly. The court’s incredulity is something that
is, needless to say, shared by all of liberal India, as the government
has in succession said that homosexuality “disturbs the public peace”,
impacts health adversely for homosexuals, impacts health adversely for
non-homosexuals, that it would “open the floodgates for delinquent
behaviour”, that it is a “social vice” and a “reflection of a perverse
mind”. This cavalcade of antediluvian attitudes and half-formed
misinformation is supposed to serve as justification for keeping an
unknown but large number of otherwise law-abiding citizens of India in
a state of permanent criminality.

Let us be clear on this: as the court implied, in asking for empirical
evidence, there is absolutely no data that can back up the
government’s claims. Indeed, in Brazil, for example, increased public
and administrative acceptance of homosexuality in an otherwise macho
culture was one prong of a multi-pronged effort to contain the spread
of AIDS. Some years later, the number of HIV/AIDS patients was barely
half the figure that had been predicted by the World Bank. Compare
that to famously homophobic Jamaica, where efforts to stem the HIV
epidemic have stumbled on the fact that no homosexuals come forward to
be treated, according to its own health ministry. India’s health
minister, Anbumani Ramadoss, has repeatedly said that it is his
ministry’s position that criminalisation of homosexuality impedes
anti-HIV work. He is to be lauded for this. What is even more
laudable, and impressive, is that he has chosen to publicly take on
the home minister on the subject, not only as a doctor and health
practitioner but as a liberal, demanding that Patil be “more
progressive” and “a lot more sensitive”, while pointing out that
acceptance of alternate sexualities has grown “the world over”.

Fortunately, this is a question of rights — fundamental rights in the
Constitution clearly prohibit sex-based discrimination — and the
domain of the courts. But whatever the decision, it is also a question
of basic dignity, and the government has already failed miserably in
ensuring that one of India’s minorities is provided the minimum
respect that any liberal…

Indian Express feature

Gay Pride: laws and outlaws

Sharika C

Posted: Oct 02, 2008 at 2333 hrs IST

UNITED KINGDOM: Considered one of the most liberal societies in the world when it comes to laws regarding homosexuality, the UK has certainly come a long way from the Buggery Act, 1533, of Henry VIII, whereby the act was an offence punishable by hanging. Homosexuality among consenting adults was decriminalised in 1967, with conditions. Numerous amendments later, the age of consent was brought down to 16 in 2000. The Civil Partnership Act of 2005 further created a parallel legal structure to marriage, which endowed on homosexual couples all the rights and responsibilities of marriage, including the right to adopt children. 

UNITED STATES: The laws are different at the state and federal level. Civil unions are permitted in Vermont, New Jersey, New Hampshire and Connecticut while same sex marriages are recognised in New York, New Mexico and Rhode Island. The Supreme Court ruling in the 2003 Lawrence vs Texas case was a landmark judgment in the context of gay rights, with the majority holding that intimate consensual sexual conduct was part of the liberty protected under the Fourteenth Amendment.

DENMARK: Homosexuality legalised since 1933, with the equal age of consent set at 15 years in 1979. In 1989, it became the first country to legalise same-sex unions, also giving couples the right to adoption. Besides, Denmark prohibits any law or behaviour that discriminates against people on the basis of their sexual orientation. 

FRANCE: Considered tolerant in matters of private morality, incidents of homosexuals being burnt to death last occurred in France in 1750. Homosexuality is not a crime; the Civil Solidarity Pact enacted in 1999 affords legal protection and the rights of marriage to same-sex couples as also unmarried opposite-sex couples. Also prohibits discrimination based on sexual orientation.


SOUTH AFRICA: One of the first countries in the world to prohibit discrimination based on sexual orientation, it also became in 2006 the first African nation and the fifth in the world to legalise same-sex marriages. Its equal age of consent is set at 16 years.


INDONESIA: Considered one of the most tolerant among Muslim nations, a homosexual relationship between consenting adults and behind closed doors is not a crime. Same-sex marriages or civil unions are, nevertheless, not recognised by law.


CHINA: Homosexuality was de-criminalised in 1997, with the age of consent fixed at 18 years. But same-sex marriages are still forbidden.


SAUDI ARABIA: Does not recognise the right to privacy nor does it prohibit discrimination based on sexual orientation. Homosexuality remains a crime of serious nature, and an indecent act under the Sunni Islamic notion of morality. Acts of homosexuality or cross-dressing can invite heavy punishment, extensive imprisonment along with severe lashing.


MALAYSIA: Homosexuality is a criminal offence, punishable under law, with imprisonment up to 20 years, fine and whippings. Heterosexual sodomy and cross-dressing are also treated as crimes. Politician Anwar Ibrahim, also the country’s former deputy prime minister, has been arrested twice and imprisoned for up to nine years on charges of having sexual relations with his male aides.